UNC e-mails reveal angst over subpoena

Published in Current, Aug. 23, 2010By Dru Sefton

Internal UNC-TV e-mails show that General Manager Tom Howe resisted releasing unaired reporting footage to a North Carolina Senate investigative committee last month. Howe unsuccessfully tried to persuade top officials of the public TV network’s licensee, the University of North Carolina system, that going along with the legislators’ request would raise serious issues about the network’s editorial independence.

“While it may be the right of the Senate to demand these materials,” Howe notes in one e-mail, “it will violate all journalism standards for us to comply.”

Sparking the standoff was UNC-TV’s broadcast report on aluminum giant Alcoa’s bid to extend its use of four hydropower dams along the Yadkin River (Current, July 26, 2010). Three segments by Senior Legislative Correspondent Eszter Vajda focused on complaints that the company’s now-inactive smelter east of Charlotte, powered by the dams, was causing environmental problems.

After further developments, Vajda is no longer with the station. A UNC-TV manager declined to discuss personnel issues, and Vajda wouldn’t tell Current whether she was terminated or quit (separate story).

The state Senate’s judiciary committee wanted to see Vajda’s unaired footage as it considered Alcoa’s licensing request. In a June 30 letter and subpoena to UNC-TV, Sen. Fletcher Hartsell (R), committee chairman, said UNC-TV, as a “state agency,” is obligated to obey North Carolina’s open records laws.

Howe and his managers “absolutely did grapple with the decision,” Associate General Manager Gail Zimmerman told Current. Howe had plenty of legal advice, from the station attorney to UNC general administration lawyers, the state Attorney General’s office and attorneys specializing in media law.

But something else figured in to the decision. The senators’ demand was occurring “in an environment where allegations were made against us that we were trying to suppress Eszter’s story,” Zimmerman said. “In some instances, we heard second- and third-hand there was concern that if we got Eszter’s material we would destroy it. We felt it was important to show that was not the case,” she said, so UNC-TV released the footage and immediately started airing the programs.

On July 6, Howe gave the committee 13 DVDs of unaired reporting footage. Free-press advocates immediately criticized UNC-TV, insisting that it was protected by the state’s shield law for journalists and could rebuff the subpoena.

Vajda’s three, 20-minute segments ran on UNC-TV’s North Carolina Now beginning that day. The first laid out Alcoa’s history with the dams, which it began building in 1917 to power its smelter. The others dealt mainly with health and environmental concerns, including assertions by widows of Alcoa workers that company practices led to their husbands’ early deaths. Vajda said UNC-TV’s managers told her the network didn’t have more money to put into continued reporting, so she began to work independently on her own documentary after the segments aired. Like her bosses at UNC-TV, she received a state Senate subpoena for her materials, and complied on the advice of her attorney, she told Current in July.

“Action is urgently needed”

Howe didn’t want to give in to the state Senate. More than 200 pages of e-mail exchanges in the days before UNC-TV released the reporting materials show him arguing to University of North Carolina President Erskine Bowles and others that the state university system, as UNC-TV’s licensee, should take a stand for journalistic independence. Copies of the e-mails were provided to Current by a source outside of UNC-TV.

The Senate committee chair, Hartsell, directed the station to give the committee “all footage (including all interviews, B-roll and camera masters)” regarding Alcoa’s activities, by July 5, just five days before the legislature was to adjourn for the year.

On June 30, Howe wrote to Bowles and the university’s chief of staff, Jeff Davies: “As you are both aware, work tapes are considered by any journalism organization to be priveleged [sic] material for the use of those involved in creating a final product. I know of no precedent for a legislative body requesting and receiving work material from a journalism organization. . . . Action is urgently needed to persuade Senator Hartsell that making this request is inappropriate and would be precedent-setting.” He copied the message to Laura Luger, university v.p. and general counsel; Brookes Skinner, station director of legal affairs; and Joni Worthington, v.p. for university communications.

Bowles, a onetime chief of staff in the Clinton White House, stepped away from the controversy in his reply: “You will have to ask the lawyers. I don’t know where the various laws on this subject are, but I know you will do what is legally, ethically and morally right. Call if you need me.”

Howe responded within minutes: “I hope we can find a way to persuade Senator Hartsell that it is in his interest to withdraw this request.”

“That’s not really my job,” Bowles replied. “He has to do what he thinks is right, just as we must.” Bowles again instructed Howe to do “what is legally, morally and ethically right.”

Current asked UNC-TV’s Zimmerman whether Bowles was advising Howe to drop his opposition to the subpoena.
“It is incorrect to say that President Bowles has not been supportive” throughout Howe’s decision-making process. “Basically [Bowles] is saying, ‘I’ll support you, do what’s right and we’ll get through this.’ He’s not getting involved in the day-to-day business of the station, he never has and he never would.”

“I think Erskine makes it clear in the message below that it is not our role to try to persuade Senator Hartsell that he should withdraw his request,” Howe told his staff. “Therefore, there seems to be little we can do but comply.”

He directed Zimmerman, Vickery and station spokesperson Steve Volstad to “draw up message points” for press inquiries “about why work tapes should be protected for any journalism entity — including one that is attached to government.”
The next morning, July 1, Howe e-mailed station and foundation trustees and the entire UNC-TV staff explaining the committee’s request.

He attached a News & Observer commentary critical of the subpoena. The situation “raises all kinds of questions about the relationship between branches of government — in this case, legislative versus executive, in that UNC-TV is an agency overseen by the UNC Board of Governors,” columnist Jack Betts had written. “Complications? Clashes of conscience? Oh, you bet.”

Howe received few replies.

UNC network trustee Phillip J. Kirk Jr., an executive of a heating and air conditioning company, e-mailed Howe: “Why would we want to alienate one of our primary funders
. . . the legislature?”

Howe replied: “It is a violation of journalism ethics to release work tapes. It is never done —by anyone — ever. If we do it we will loose [sic] credibility at a journalism organization.”
Kirk: “Well, then don’t do it!”

Howe: “It raises lots of tough issues — not sure yet what our attorneys are going to decide about complying.” (Howe’s correspondence with attorneys were not available to Current last week.)

Bowles wrote to Howe, again including an admonition that no one could argue with: “As you know, I want you to do what is legally, morally and ethically right.”

Complying, reluctantly

On July 2, with the Senate’s deadline coming up fast — just past the holiday weekend — Howe sent an e-mail to Bowles and other top university officials, Skinner, and his station managers.

“Management at UNC-TV has decided we should comply with the demand from Senator Hartsell. It remains unclear whether we can refuse to comply under the shield law — in fact, at least one attorney in the Attorney General’s Office believes that we are not covered under that statute. . . . While we do not believe the General Assembly should request our work tapes, they have, and it appears within their rights to do so. . . . Therefore, we are convinced that while we might wish this had never been requested, we believe complying is the correct legal, moral and ethical thing to do.” He noted that his management team agreed.

Bowles replied: “Of course, I support you 100%. Let me know if I can help. Thank you, Tom, for exploring this thoroughly.”

Howe: “I appreciate your support very, very much.”

Bowles: “And I value your leadership enormously.”

On July 3, Howe approved talking points written by Volstad to answer the growing number of requests from the media for comment. One read: “We are aware of the fact that there are those who will disagree with our actions, but we felt that legally we had no choice.”

Howe suggested a better way to spin that: “I wonder a little about ‘we had no choice,’” he wrote. “We did have a choice — and we choose [sic] to release the material in light of the overwhelming interest in it.”

That same day, Vickery e-mailed Howe, Skinner and other network execs that she has compiled and inventoried 13 discs of reporting materials, which she said she would turn over to the state Senate committee on July 5.

On July 6, about a dozen senators viewed the unaired footage. Afterward, Hartsell said on the Senate floor that they didn’t learn anything that the state couldn’t have found out on its own.